Citation Nr: 0718363
Decision Date: 06/19/07 Archive Date: 06/29/07
DOCKET NO. 05-33 695 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to an initial evaluation in excess of 10
percent for service-connected status post lumbar sprain with
sacroiliitis.
2. Entitlement to an initial evaluation in excess of 10
percent for service-connected right knee strain.
REPRESENTATION
Appellant represented by: National Association of County
Veterans Service Officers
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran had active service from September 2001 to June
2005
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey.
In January 2007, the veteran was afforded a hearing before
the undersigned Acting Veterans Law Judge rendering the
determination in this claim and was designated by the
Chairman of the Board to conduct that hearing, pursuant to 38
U.S.C.A. § 7102(b) (West 2002).
As a procedural matter, the RO granted service connection for
migraine headaches in September 2005 and assigned a 0
(noncompensable) rating. In October 2005, the veteran filed
a Notice of Disagreement. A Statement of the Case (SOC) was
issued in January 2006. The SOC informed the veteran that he
must file an appeal within 60 days from the date of the SOC,
or within one year of the date of the RO's September 2005
decision. However, there is no record that a substantive
appeal was ever received.
In addition, a Supplemental Statement of the Case (SSOC) was
issued in July 2006, which advised the veteran that if he had
not yet filed a formal appeal as to this issue, that he must
file his appeal as soon as possible, and that he should
review the instructions with an attached VA Form 9 ("Appeal
to Board of Veterans Appeals"). There is no record that an
appeal was ever filed as to the issue of entitlement to an
initial compensable rating for migraine headaches, and under
the circumstances, further notice was not required by VA.
See 38 C.F.R. § 19.32 (2006).
The Board may only exercise jurisdiction over an issue after
an appellant has filed both a timely notice of disagreement
to a rating decision denying the benefit sought, and a timely
substantive appeal. 38 U.S.C.A. § 7105 (West 2002); Roy v.
Brown, 5 Vet. App. 554 (1993); Barnett v. Brown, 83 F.3d
1380, 1383 (Fed. Cir. 1996). In this case, although
testimony was taken as to this issue in January 2007, a
timely substantive appeal has not been received.
Accordingly, the issue of entitlement to an initial
compensable rating for migraine headaches is not currently on
appeal before the Board.
FINDINGS OF FACT
1. The veteran's low back disability is manifested by
subjective complaints of pain; it is not shown to be
productive of intervertebral disc syndrome, arthritis,
forward flexion of the thoracolumbar spine between 30 and 60
degrees, a combined range of motion of the thoracolumbar
spine of not greater than 120 degrees, or muscle spasm or
guarding severe enough to result in an abnormal gait or
abnormal spinal contour.
2. The veteran's right knee disability is manifested by
subjective complaints of pain; it is not shown to be
productive of flexion limited to 30 degrees, extension
limited to 15 degrees, or moderate recurrent subluxation or
lateral instability.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 10
percent for status post lumbar sprain with sacroiliitis have
not been met. 38 U.S.C.A. §§ 1155, 5103, 5013A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7,
4.10, 4.14, 4.40, 4.45, 4.7, 4.71a, Diagnostic Codes (DCs)
5236, 5237 (2006).
2. The criteria for an initial rating in excess of 10
percent for right knee strain have been met. 38 U.S.C.A. §§
1155, 5103, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59,
4.71a, DCs 5257, 5260, 5261 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
As required by 38 U.S.C.A. § 5103(a), prior to the initial
unfavorable agency of original jurisdiction (AOJ) decision,
the claimant must be provided notice consistent with 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This notice
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim.
In the instant case, the veteran received VCAA notification
in April 2005, prior to the initial adjudication of his
claims. The RO's notice letter informed the veteran that he
could provide evidence to support his claims or location of
such evidence and requested that he provide any evidence in
his possession. The notice letter notified the veteran that
VA would obtain all relevant evidence in the custody of a
federal department or agency. He was advised that it was his
responsibility to either send records pertinent to his
claims, or to provide a properly executed release so that VA
could request the records for him.
The veteran was also asked to advise VA if there were any
other information or evidence he considered relevant to this
claim so that VA could help by getting that evidence. It is
the Board's conclusion that the veteran has been provided
with every opportunity to submit evidence and argument in
support of his claims, and to respond to VA notices. The
duty to notify the veteran was satisfied under the
circumstances of this case. 38 U.S.C.A. § 5103.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the notice requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to all five elements of a
service connection claim. Those five elements include: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability.
The Court held that upon receipt of an application for a
service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Id. This notice
must also include the information pertinent to the relevant
disability rating and an effective date for the award of
benefits that would be assigned if service connection is
awarded. Id.
In the present appeal, the veteran was provided with notice
of what type of information and evidence was needed to
substantiate his claims for service connection, the grants of
which led to the issues on appeal. In addition, in March
2006 and January 2007, he was provided with notice of the
type of evidence necessary to establish a disability rating
or effective date. In any event, the April 2005 VCAA notice
provided the veteran with notice of what type of information
and evidence was needed to substantiate his claims.
The statutory scheme contemplates that once a decision
awarding service connection, a disability rating, and an
effective date has been made, section 5103(a) notice has
served its purpose. Id.; see also Sutton v. Nicholson, 20
Vet. App. 419 (2006). Furthermore, as the veteran was
granted service connection for the claimed disabilities and
assigned disability evaluations and initial effective dates,
the Secretary had no obligation to provide further notice
under the statute. Id.
Moreover, the veteran was provided notice of the regulations
for evaluating his low back and right knee disabilities in
the September 2005 Statement of the Case, and he has not
otherwise argued failure of notice. As such, any defect with
respect to the content of the notice requirement was non-
prejudicial. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
VA must also make reasonable efforts to assist the veteran in
obtaining evidence necessary to substantiate the claims for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claims.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2006).
Service medical records are associated with the claims
folder. The evidence of record also includes outpatient
treatment records from VA. No other VA or non-VA medical
records have been identified. The veteran has been afforded
a predischarge examination. In light of the foregoing, the
Board is satisfied that all relevant facts have been
adequately developed to the extent possible; no further
assistance to the veteran in developing the facts pertinent
to the issues on appeal is required to comply with the duty
to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.
The Board notes that subsequent to the July 2006 Supplemental
Statement of the Case, the veteran submitted VA progress
notes, dated between 2005 and 2006. Although this evidence
has not been reviewed by the agency of original jurisdiction,
it was accompanied by a waiver of RO review. See 38 C.F.R.
§ 20.1304(c) (2006). Accordingly, a remand for RO review of
this evidence is not required, and the Board may proceed.
Analysis
The provisions of 38 U.S.C. § 7104 indicate that Board
decisions must be based on the entire record, with
consideration of all the evidence. In Timberlake v. Gober,
14 Vet. App. 122 (2000), the Court held, in pertinent part,
that the law requires only the Board address its reasons for
rejecting evidence favorable to the claimant. The Federal
Circuit has also held that the Board must review the entire
record, but does not have to discuss each piece of evidence.
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
It is VA's defined and consistently applied policy to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt it is
meant that an approximate balance of positive and negative
evidence exists which does not satisfactorily prove or
disprove the claim. It is a substantial doubt and one within
the range of probability as distinguished from pure
speculation or remote possibility. See 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. § 3.102 (2006).
The veteran asserts that higher initial evaluations are
warranted for his service-connected status post lumbar sprain
with sacroiliitis, and right knee strain. Disability
evaluations are determined by comparing the veteran's present
symptomatology with the criteria set forth in the VA's
Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38
C.F.R. § Part 4.
The veteran is appealing the original assignments of
disability evaluations following awards of service
connection. In such a case, it is not the present levels of
disability which are of primary importance, but rather the
entire period is to be considered to ensure that
consideration is given to the possibility of staged ratings;
that is, separate ratings for separate periods of time based
on the facts found. See Fenderson v. West, 12 Vet. App. 119,
126 (1999).
Status Post Lumbar Sprain with Sacroiliitis
The veteran asserts that an initial rating in excess of 10
percent is warranted for his service-connected status post
lumbar sprain with sacroiliitis. At the hearing before the
Board, he testified that he had a hard time standing for very
long, that he had to sit down every half an hour or so at a
former place of employment, and that he has taken Flexiril
and Ibuprofen for his symptoms.
The RO has evaluated the veteran's low back disability as 10
percent disabling under DCs 5236-5237. See 38 C.F.R. § 4.27
(2006) (hyphenated diagnostic codes are used when a rating
under one diagnostic code requires use of an additional
diagnostic code to identify the basis for the evaluation
assigned; the additional code is shown after the hyphen).
The hyphenated diagnostic codes in this case indicate that
"sacroiliac injury and weakness" under DC 5236 is the
service-connected disorder, and it is rated as if lumbosacral
strain (DC 5237) were the residual condition.
Under sacroiliac injury and weakness (DC 5236) and
lumbosacral strain (DC 5237) are rated under the "General
Rating Formula for Diseases and Injuries of the Spine." The
General Rating Formula provides that a 20 percent rating is
warranted for: Forward flexion of the thoracolumbar spine
greater than 30 degrees but not greater than 60 degrees; a
combined range of motion of the thoracolumbar spine not
greater than 120 degrees; or, muscle spasm or guarding severe
enough to result in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed lordosis, or abnormal
kyphosis. Note (1) to the rating formula specifies that any
associated objective neurologic abnormalities, including, but
not limited to, bowel or bladder impairment, should be
separately evaluated under an appropriate diagnostic code.
The veteran's service medical records show that in May 2004,
he received treatment for complaints of lower back pain that
were exacerbated by activities such as standing, walking,
sitting and bending. He could not recall any injury. On
examination, there was light inflammation and muscle
spasming. He was able to bend, twist, and rotate his torso
with pain. The assessment was paraspinal muscle spasms. He
was given Motrin, Naproxen, and Flexiril. The veteran's
"Report of Medical Assessment," dated in April 2005, notes
a history of low back pain since 2003, with no neurological
symptoms.
In an April 2005 pre-discharge examination report, the
veteran reported a history of a low back injury in 2004 that
was associated with discomfort on prolonged periods of
sitting or lying down. He stated that once he was up and
active that the pain was relieved and resolved. He further
stated that the pain did not travel down the legs, that he
had a dull ache, that his pain was relieved by stretching
exercises, and that he could function without medications.
The report notes that his pain was not incapacitating and was
not limiting in his activities.
On examination, his gait and posture were within normal
limits. There were no complaints of radiating pain on
movement, and muscle spasm was absent. The thoracolumbar
spine range of motion was flexion to 90 degrees, extension to
30 degrees, bilateral lateral flexion to 30 degrees, and
bilateral rotation to 30 degrees. The examiner stated that
the range of motion of the spine was not additionally limited
by pain, fatigue, weakness, lack of endurance or
incoordination with repetitive use.
There was no ankylosis of the spine, and no signs of
intervertebral disc syndrome were present. The lower
extremities had sensory and motor function within normal
limits. Knee and ankle jerks were 2+, and symmetric. The
relevant diagnosis was status post lumbar sprain with
bilateral sacroiliitis. An associated X-ray report for the
lumbosacral spine, and SI (sacroiliac joints), indicates that
they were normal. VA progress notes, dated between 2005 and
2006, do not contain any relevant findings.
The Board finds that an initial rating in excess of 10
percent rating is not warranted. First, the veteran's
forward flexion of the thoracolumbar spine is not shown to be
greater than 30 degrees but not greater than 60 degrees, nor
is his combined range of motion of the thoracolumbar spine
not greater than 120 degrees.
Next, there is no evidence of muscle spasms or guarding
severe enough to result in an abnormal gait or abnormal
spinal contour. In this regard, although there is some
evidence of muscle spasm, muscle spasm was not found during
the veteran's April 2005 examination, and the examination
report indicates that he had a normal gait. There is no
evidence of guarding.
Finally, the April 2005 examination report indicates that the
veteran's motor and sensory functions were within normal
limits for the lower extremities, and the evidence does not
show that the veteran has any associated neurological
abnormalities.
The Board notes that, despite notations of lumbosacral
"DJD" (degenerative joint disease) in a number of VA
progress notes, the veteran is not shown to have arthritis by
X-ray, nor is he shown to have intervertebral disc syndrome.
See e.g., X-ray report, dated in April 2005; April 2005
examination report. Therefore, application of DC 5003 and
the Formula for Rating Intervertebral Disc Syndrome are not
warranted.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the claim, and that
an initial rating in excess of 10 percent for status post
lumbar sprain with sacroiliitis is denied.
Right Knee Strain
At the hearing before the Board, the veteran asserts that an
initial rating in excess of 10 percent was warranted for his
service-connected right knee strain. He asserts that he
wears a brace for his right knee, and that he has taken
Flexiril and Ibuprofen for his symptoms.
The RO has evaluated the veteran's right knee disability as
10 percent disabling under DC 5260. Under DC 5260, a 20
percent evaluation is warranted where knee flexion is limited
to 30 degrees. The standardized description of joint
measurements is provided in Plate II under 38 C.F.R. § 4.71.
Normal extension and flexion of the knee is from 0 to 140
degrees.
The veteran's service medical records show that in June 2002,
he was treated for complaints of possible fluid in his right
knee. He denied pain, except on direct contact. He stated
that he did not recall any injury. On examination, the right
knee had a "full range of motion," alternatively noted as
extension to 0 degrees and flexion to 135 degrees. There was
mild effusion. The assessments were patellar effusion, and
patellar bursitis.
About ten days later, the veteran received follow-up
treatment for his right knee, with reported pain of three
weeks' duration manifested after sitting for extended periods
of time. On examination, there was no instability or
patellar grind. Effusion was present. The assessment was
subpatellar bursitis.
In December 2004, he received treatment for complaints of
right knee pain that had begun in July 2002 after he fell off
of a bunk bed. His pain was reportedly exacerbated by
activities such as standing, walking, sitting and bending.
The veteran stated that he could not recall any injury.
On examination, there was slight enlargement of the right
knee, with no visible or palpable fluid wave, and a negative
valgus stress test. The assessment was bursitis/chronic knee
pain, "no improvement with conservative therapy." The
veteran's "Report of Medical Assessment," dated in April
2005, notes a history of knee pain for three years related to
a fall out of bed, with intermittent swelling, with negative
X-rays and no significant pathology.
In an April 2005 pre-discharge examination report, the
veteran reported a history of intermittent right knee pain
exacerbated by staying in one position too long, such as
after extended sitting or driving. On examination, his gait
was within normal limits. The general appearance of the
right knee was within normal limits. The right knee had
crepitation, but no instability or subluxation. There was no
ankylosis.
Right knee extension was reported to 0 degrees, and flexion
to 130 degrees, with pain beginning at 125 degrees. Range of
motion was additionally limited by pain, but not by fatigue,
weakness, lack of endurance, or incoordination with
repetitive use. The lower extremities had sensory and motor
function within normal limits. Knee and ankle jerks were 2+,
and symmetric. The relevant diagnosis was strain of the
right knee. An associated X-ray report for the right knee
indicates that it was normal. VA progress notes, dated
between 2005 and 2006, contain notations of knee arthralgia.
The Board finds that an initial rating in excess of 10
percent rating is not warranted. None of the aforementioned
ranges of motion for the right knee show that flexion was
limited to 30 degrees. Therefore, as the veteran's right
knee flexion is not shown to be limited to 30 degrees, the
Board finds that the preponderance of the evidence is against
the claim, and that the claim must be denied.
As for the possibility of a higher evaluation under any other
relevant diagnostic code, Schafrath v. Derwinski, 1 Vet. App.
589 (1991), the Board notes that a 20 percent evaluation is
warranted where there is a limitation of knee extension to 15
degrees under DC 5261. However, none of the aforementioned
ranges of motion for the right knee show that extension was
limited to 15 degrees.
With regard to the possibility of an increased rating due to
functional loss, see 38 C.F.R. §§ 4.40 and 4.45; DeLuca v.
Brown, 8 Vet. App. 202, 204-206 (1995); VAGCOPPREC 9-98, 63
Fed. Reg. 56704 (1998), the Board initially notes that the
veteran is shown to have a range of motion in his right knee
of no less than from 0 to 130 degrees. The April 2005
examination report shows that the veteran's range of motion
was additionally limited by pain, but not by fatigue,
weakness, lack of endurance, or incoordination with
repetitive use. The lower extremities had sensory and motor
function within normal limits. Knee and ankle jerks were 2+,
and symmetric.
In summary, there is no evidence of neurological deficit, and
there is a complete lack of such findings as incoordination
or muscle atrophy. Given the demonstrated ranges of motion
in the right knee, the Board finds that there is insufficient
evidence of functional loss due to knee pathology to support
a conclusion that the loss of motion in the right knee more
nearly approximates the criteria for a 20 percent rating
under either DC 5260 or DC 5261, even with consideration of
38 C.F.R. §§ 4.40 and 4.45.
Separate ratings under 38 C.F.R. § 4.71a, DCs 5260 and 5261
may be assigned for disability of the same joint, if none of
the symptomatology on which each rating is based is
duplicative or overlapping. See VAOPGCPREC 9-04, 69 Fed.
Reg. 59990 (2005). In this case, however, as set forth
above, none of the medical evidence shows that the veteran's
right knee flexion or extension is limited to the extent
necessary to meet the criteria for separate compensable
ratings. 38 C.F.R. § 4.71, Plate II, DC's 5260, 5261.
Additionally, to assign two, separate compensable ratings
solely based on painful motion under two separate diagnostic
codes (i.e., under DCs 5260 and 5261) would be in violation
of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC
9-04.
The Board has also considered DC 5257 pertaining to "other
impairment of the knee." Under this provision, a 20 percent
rating contemplates moderate recurrent subluxation or lateral
instability. Here, the record contains no objective evidence
of instability or subluxation of the right knee. The April
2005 examination report indicates that there was no
instability or subluxation, and there is no other evidence to
show moderate recurrent subluxation or lateral instability.
Therefore, a higher and/or separate rating is not warranted
under DC 5257. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604
(1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). In
making this determination, the Board finds that since DC 5257
is not predicated on loss of range of motion, 38 C.F.R. §§
4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App.
202, 204-206 (1995); do not apply. Johnson v. Brown, 9 Vet.
App. 7, 9 (1996).
Given the foregoing, the Board finds that the preponderance
of the evidence is against an initial rating in excess of 10
percent under DCs 5257, 5260, or 5261, and the claim is
denied. See also VAOGCPREC's 23-97, 9-98 and 9-04.
ORDER
An initial rating in excess of 10 percent for status post
lumbar sprain with sacroiliitis is denied.
An initial rating in excess of 10 percent for right knee
strain is denied.
____________________________________________
L. HOWELL
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs